According to Section 12(g) of the Legal Services Authorities Act, 1987 (as amended in 1994), any person in custody, including custody in a protective home or in juvenile home or psychiatric hospital or psychiatric nursing home, is entitled to legal services for filing or defending a case .A large number of under trial prisoners who are not in a position to engage lawyers for defending them, feel handicapped in their defence and remain incarcerated for long periods. Therefore, His Lordship Hon’ble Dr . Justice A.S. Anand, Judge, Supreme Court of India & Executive Chairman, National Legal Services Authority has invited suggestions/ views form all the Chief Justice of the High Courts ( Patrons -in-Chief of State Legal Services Authorities) on a scheme for legal and assistance to the prisoners in custody. His Lordship has pointed out that Legal Aid Counsel may be attached to all the courts of Magistrates in the country who should give legal assistance to the persons in custody, for opposing remand applications, securing orders for bail and moving miscellaneous applications as may be required. According to His Lordship, Legal Aid Counsel Should be under an obligation to remain present in the Court assigned to him during the remand hour and such other hours as may be directed by the Court. Therefore when a challan is filed against the accused in custody in the Court assigned to such advocate, the case should be entrusted to him for defence also. The appeals or revisions arising out of such challans should also be ordinarily entrusted to him. His Lordship is of the view that this system can go a long way in providing effective and meaningful legal assistance to under trial prisoners, who feel handicapped in their defence on account of lack of resources or other dis-abilities and cannot engage a counsel to defend them. His Lordship has desired that this scheme be followed through out the country.
2. The Scheme lays emphasis for legal aid and assistance to the persons in custody at the following three stages:-
- when in custody during investigation of the cases and need legal assistance for getting released on bail and opposing remand application;
- legal assistance during trial for defence;
- legal assistance for preferring appeals or revisions in case of adverse orders.
3. In terms of the directions issued by His Lordship, a model scheme has been formulated which may be adopted by the States with suitable modifications as required under the prevailing circumstances and needs of the respective States as under:-
- The first step should be to identify all the Courts of Magistrates in each District for attaching Legal Aid Counsel. In case the workload in a particular court or courts is too little, one Legal Aid Counsel may be attached to two courts even.
- State Legal Services Authority or District Legal Services Authority to which the implementation of the scheme is entrusted, may prepare a panel of Legal Aid Counsel preferably with a minimum standing of five years on criminal side. The Advocates from this panel may be attached to the Courts of Magistrates and may be called “Legal Aid Counsel”.
- The remuneration and fee to be paid to Legal Aid Counsel may be determined by State Legal Services Authority or District Legal Services Authority, as the case may be. The remuneration / fee may be fixed under the following courts:-
- for attending the Court during remand hour every day (the remuneration for attending the court during remand hour may be fixed at Rs.500/- per month or more depending upon the work load) ;
- fee schedule for acting as defence counsel for aided persons may be drawn. It may be on the basis of effective hearings in warrant as well as summon trial cases with a ceiling of maximum fee;
- fixed fee with incidental expenditure for filing and contesting an appeal or revision. The appeals and revisions pay be permitted to be filed with the approval of the Member Secretary of the State Legal Services Authority or Secretary, District Legal Services Authority, as the case may be.
- Name and address of the Legal Aid Counsel may be displayed outside the Court to which he is attached with requisite information as to who are eligible persons under the Legal Services Authorities Act and no payment is required to be made by them to Legal Aid counsel (in case of any complaint against a Legal Aid Counsel regarding demand of fee or any other charges from an aided persons, prompt action by way of removal of his name from the panel may be taken).
- The scheme of Legal Aid Counsel may be given wide publicity in the State. Hordings in the police stations and jails may be affixed.
- The scheme can be more effectively implemented if printed proformas of appointment letters to be issued to Legal Aid Counsel are handed over to the Courts of Magistrates with a request to issue the same in favour of the Legal aid Counsel who takes over the defence of any person in custody being produced before the Court. On the basis of this appointment letters legal aid functionaries to issue, required order allocating that case to Legal Aid Counsel to facilitate settlement of bills.
- To ensure that the Legal Aid Counsel remains present in the Court during remand hour or any other hour of the day as directed by the Court. Legal Aid functionaries may insist for an attendance certificate issued by the Court to the Legal Aid Counsel before making him payment for remand hour.
- Certificates of merit/awards may be given to those Legal Aid Counsel whose performance is found to be outstanding.
(All payments to Legal Aid Counsel may be made after obtaining certificates from the concerned Judicial Officers regarding attendance of the counsel at the time of remand or conduct of trial/ appeal / revision).
Guidelines of Orissa State Legal Services Authority for appointment of Legal Aid Counsel in the Magisterial Courts:
(Vide letter No. 370(14) dtd. 28.1.2000 addressed to all Chairman, D. L.S. As)
- (a) The Magisterial Courts in Orissa taking up cases involving remand maters shall be provided with a Legal Aid Counsel to be appointed by the Chairman of District Legal Services Authority subject to the approval of the State Authority.
- (b) The appointment of Legal Aid Counsel shall be for a term of one year subject to the following eligibility criterion:
- The advocate to be appointed must have active standing practice at the Bar for more than 5 years and capable, to the honest assessment of the Chairman, of properly conducting criminal matters.
- The remuneration of the Legal Aid Counsel shall be Rs.500/ P.M (Consolidated) which shall be paid to them from the Central grant by the engaging authority.
- In Case the learned Chairman finds that the workload in a particular court is less, the counsel so engaged by him, in addition, can be entrusted to look after the job of another Court subject to practical feasibility.
- After expiry of the said term, another suitable advocate with the same eligible criteria shall be appointed afresh.
- The process for appointment of new Legal Aid Counsel shall be initiated 3 months prior to expiry of the term of the engaged advocate.
- The compliance report shall be submitted to the State Authority at any early date for approval of the Hon’ble Executive Chairman of the State Authority.